Following the opinions of the South Carolina appellate courts, the Fourth Circuit, and the United States Supreme Court. -- William J. Watkins, Jr.

Thursday, March 01, 2007

Fourth Circuit holds that affair between witness and police officer did not violate due process

In UNITED STATES v. DYESS, the Fourth Circuit considered whether due process was violated because of alleged egregious conduct. The conduct alleged to be outrageous is this case was a police officer's romantic involvement with a witness (and wife of one of the defendant's) during the plea and sentencing phases of the defendants' proceedings and his subornation of perjury by the wife at the sentencing hearing. advantages.The Court employed the following test to determine whether due process had been violated:

(1) that the government consciously set out to use sex as a weapon in its investigatory arsenal, or acquiesced in such conduct for its own purposes upon learning that such a relationship existed; (2) that the government agent initiated a sexual relationship, or allowed it to continue to exist, to achieve governmental ends; and (3) that the sexual relationship took place during or close to the period covered by the indictment and was entwined with the events charged therein.

Upholding the decision of the district court, the panel noted that the officer's behavior was to reassure the witness that nothing bad would happen to her, and gifts to her and her daughter were aimed at endearing her to the officer and not at obtaining more information to aid in the defendants' prosecution. Hence, the officer did not use sex as a weapon nor was the relationship instituted to serve government ends. Finally, the relationship occurred after the period of events covered in the indictment.